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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Hoak Media of Colorado License, LLC ) File Number: EB-07-DV-021
Licensee of Station KGJT-LP ) NAL/Acct. No.: 200732800002
Grand Junction, Colorado ) FRN: 0014363147
Facility ID # 71948 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 30, 2007
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Hoak Media of Colorado License, LLC ("Hoak Media"), licensee of
Class A television broadcast station KGJT-LP, in Grand Junction,
Colorado, apparently willfully and repeatedly violated Sections
11.35(a) and 73.3526 of the Commission's Rules ("Rules") by failing to
ensure the operational readiness of the station's Emergency Alert
System ("EAS") equipment, and by failing to maintain a complete public
inspection file. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Hoak Media is
apparently liable for a forfeiture in the amount of eight thousand
dollars ($8,000).
II. BACKGROUND
2. On January 5, 2007, agents from the Enforcement Bureau's Denver Office
conducted an inspection of KGJT-LP at the station's main studio
location of 345 Hillcrest Drive, in Grand Junction, Colorado, during
normal business hours. According to Commission records, KGJT-LP was
converted to Class A status on August 9, 2001. Hoak Media filed a
timely renewal application for KGJT-LP on December 1, 2005, which is
still pending.
3. While examining the public inspection file, the Denver agents observed
that the file was not complete. Specifically, there were no quarterly
issues/program lists in the public inspection file. The business
manager for KGJT-LP informed the agents that issues/programs lists
were not maintained for KGJT-LP because the station was unaware that
the rules required such lists to be maintained by Class A television
stations.
4. The Denver agents also inspected the KGJT-LP EAS equipment. The agents
asked the KGJT-LP master control operator to run a required weekly
test ("RWT"). The control operator advised the agents that there would
be no visual message on the RWT. A Denver agent asked the KGJT-LP
engineer if KGJT-LP had a character generator installed to produce the
visual message, and the KGJT-LP engineer stated that KGJT-LP had never
installed an EAS character generator.
5. On February 7, 2007, a Denver agent contacted the engineer for
KGJT-LP. The engineer stated that KGJT-LP installed a character
generator as part of the station's EAS equipment a few weeks after the
January 5, 2007, inspection.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
7. The Rules provide that every broadcast station, including Class A
television stations, is part of the nationwide EAS network and is
categorized as a participating national EAS source unless the station
affirmatively requests authority to not participate. The EAS provides
the President and state and local governments with the capability to
provide immediate and emergency communications and information to the
general public. State and local area plans identify local primary
sources responsible for coordinating carriage of common emergency
messages from sources such as the National Weather Service or local
emergency management officials. Required monthly and weekly tests
originate from EAS Local or State Primary sources and must be
retransmitted by the participating station.
8. Section 11.35 of the Rules requires all broadcast stations to ensure
that EAS encoders, EAS decoders and attention signal generating and
receiving equipment is installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Broadcast stations must also determine
the cause of any failure to receive required monthly and weekly EAS
tests, and must indicate in the station's log why any required tests
were not received and when defective equipment is removed and restored
to service.
9. Section 11.61(a)(1) and (2) of the Rules requires broadcast stations
to (a) receive monthly EAS tests from designated local primary EAS
sources and retransmit the monthly test within 60 minutes of its
receipt and (b) conduct tests of the EAS header and EOM codes at least
once a week at random days and times. The requirement that stations
monitor, receive and retransmit the required EAS tests ensures the
operational integrity of the EAS system in the event of an actual
disaster. Appropriate entries must be made in the broadcast station
log as specified in Sections 73.1820 and 73.1840, indicating reasons
why any tests were not received or transmitted.
10. Section 11.51 of the Rules requires television stations to transmit
national level EAS messages and required tests, transmitting a visual
message. If the message is a video crawl, it must be displayed at the
top of the television screen or where it will not interfere with other
visual messages.
11. KGJT-LP was unable to transmit the visual message portion of the EAS
test requested by the Denver agents because an EAS character generator
was not installed at the time of inspection. Station staff informed
the Denver agents that KGJT-LP had never installed an EAS character
generator. As a Class A television station, KGJT-LP is required to
transmit both aural and visual EAS messages. KGJT-LP personnel were
aware that no visual message was being transmitted on the EAS tests it
transmitted, therefore, the violation was willful. The violation
occurred for more than one day, therefore it was repeated. While Hoak
Media reports that they have since installed an EAS character
generator for KGJT-LP, we note that the Commission has consistently
held that the subsequent remedial actions undertaken by the licensee
do not excuse or nullify a licensee's rule violation.
12. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection a file containing materials listed in
that section. Section 73.3526(e)(11)(i) of the Rules requires
licensees to place in their public inspection file a list for each
calendar quarter, to be filed by the tenth day of the succeeding
calendar quarter, a list of programs that have provided the station's
most significant treatment of community issues during the preceding
three month period. These lists must be retained in the station's
public inspection file until final action has been taken on the
station's next renewal application. At the time of the inspection,
KGJT-LP's public inspection file contained no issues/programs lists.
In the pending KGJT-LP renewal application, in response to Section IV,
Question 3, Hoak Media certified that the public inspection file for
KGJT-LP had the proper documentation as required by 73.3526. However,
as the Denver agents' inspection revealed, KGJT-LP did not have a
complete public inspection file. Not withstanding the business
manager's unfamiliarity with the public inspection file rules, Hoak
Media was aware of the requirement to have a complete public
inspection file, given its certification of compliance with the public
inspection file rules on the KGJT-LP Renewal Application. Therefore,
Hoak Media's violation was willful. No evidence could be found to
indicate that any of the missing issues/programs lists were ever in
place. Therefore, Hoak Media's violation was repeated. Where lapses
occur in maintaining the public inspection file, neither the negligent
acts nor omissions of station employees or agents, nor the subsequent
remedial actions undertaken by the licensee, excuse or nullify a
licensee's rule violation.
13. Based on the evidence before us, we find that Hoak Media apparently
willfully and repeatedly violated Sections 11.35(a) and 73.3526 of the
Rules by failing to ensure the operational readiness of the KGJT-LP
EAS equipment and by failing to make available a complete public
inspection file.
14. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for public file violations is $10,000 and for
EAS equipment not installed or operational is $8,000. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(E) of the Act, which
include the nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. In this case, while the Emergency
Alert System was able to transmit aural tests and messages, the system
was incapable of transmitting visual tests and messages, as there was
no character generator installed. We therefore conclude that the
forfeiture amount of $4,000 for failing to ensure the complete
operational readiness of the KGJT-LP EAS equipment is appropriate.
Additionally, while the KGJT-LP public inspection file was partially
complete, it did not contain multiple years of the issues/programs
lists. We therefore conclude that the forfeiture amount of $4,000 for
maintaining an incomplete public inspection file is appropriate.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Hoak Media is
apparently liable for an $8,000 forfeiture.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Hoak Media of Colorado
License, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violations of Sections 11.35(a) and 73.3526 of the Rules.
16. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Hoak Media of Colorado
License, LLC SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
17. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA 15251.
Payment by wire transfer may be made to ABA Number 043000261, receiving
bank Mellon Bank, and account number 911-6106.
18. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226 and must include
the NAL/Acct. No. referenced in the caption.
19. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
20. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
21. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Hoak Media of Colorado License, LLC.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver District Office
Western Region
Enforcement Bureau
47 C.F.R. SS 11.35(a), 73.3526.
47 U.S.C. S 503(b).
See BRTTA-20051201BFM, accepted for filing December 2, 2005 ("KGJT-LP
Renewal Application"). Hoak Media amended this renewal application on
March 20, 2006. ("KGJT-LP Renewal Application Amendment") in which it
stated that its certifications in the KGJT-LP Renewal Application cover
only the period from November 12, 2003, to March 20, 2006. KGJT-LP Renewal
Application Amendment at Exhibit 6.
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. SS 11.11 and 11.41.
47 C.F.R. SS 11.1 and 11.21.
47 C.F.R. S 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
sources.
47 C.F.R. S 11.35(a) and (b).
The required monthly and weekly tests are required to conform to the
procedures in the EAS Operational Handbook. See also, Amendment of Part 11
of the Commission's Rules Regarding the Emergency Alert System, 17 FCC Rcd
4055 (2002).
47 C.F.R. SS 73.1820 and 73.1840.
47 C.F.R. S 11.51(a),(d). See also 47 C.F.R. S 73.1250(h)("...[W]hen an
emergency operation is being conducted under a national, State or Local
Area Emergency Alert System (EAS) plan, emergency information shall be
transmitted both aurally and visually unless only the EAS codes are
transmitted as specified in S11.51(b) of this chapter.").
See 47 C.F.R. S 11.11(a).
See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999) (citing
Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970) and Eleven Ten
Broadcasting Corp., 33 FCC 706 (1962)).
47 C.F.R. S 73.3526(e)(11)(i).
See KGJT-LP Renewal Application. We note that in its renewal application
and amendment, Hoak Media states that the certifications made in the
application cover only the time period from November 12, 2003, to March
20, 2006. For that entire time period, however, there are no quarterly
issues /programs lists in the KGJT-LP public inspection file.
See Padre Serra Communications, Inc., supra.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(E).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 11.35(a),
73.3526.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission